United States v. Cantu

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 12, 2003
• Docket: 02-50123
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _____________________

No. 02-50123 _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS CANTU,

Defendant-Appellant.

__________________________________________________________________

Appeal from the United States District Court for the Western District of Texas USDC No. SA-99-CR-347-20 _________________________________________________________________ February 11, 2003

Before JOLLY, HIGGINBOTHAM, and MAGILL*, Circuit Judges.

PER CURIAM:**

Carlos Cantu (“Cantu”) appeals his conviction of conspiracy

and possession with intent to distribute more than fifty grams of

methamphetamine. He argues that the government failed to prove

venue; that his Sixth Amendment right to confront witnesses was

violated by a limitation on his cross-examination of a witness; and

that his trial counsel rendered ineffective assistance. Cantu also

challenges the sentence enhancement imposed for perjury and

* Circuit Judge of the Eighth Circuit, sitting by designation. ** Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. obstruction of justice. For the reasons set forth below, we affirm

the judgment of the district court.

I

In 1996 and 1997, Cantu lived in California with several

roommates, including Luis Martinez. (“Martinez”) In 1997, Cantu

moved from California to Raymondville, Texas. In 1998, Eloy Garcia

(“Garcia”), a government informant,1 moved from Texas to California

where he met Martinez. Garcia and Martinez discussed the drug

trade, and Martinez informed Garcia that he had a friend living in

Texas, Cantu, who could obtain drugs. In December 1998, Martinez

introduced Cantu to Garcia in California.

Cantu introduced Garcia to Mariano Marquez (“Marquez”) in an

effort to set up a methamphetamine deal in California. Garcia

received a sample of methamphetamine from Marquez. However, the

deal, which was set for February 1999, ultimately did not take

place.

In March 1999, Cantu contacted Garcia from Texas and asked if

Garcia was still interested in obtaining methamphetamine. Garcia

referred Cantu to his “nephew”, DPS agent Saldivar. In May 1999,

Cantu arranged to meet Saldivar and Ishmael Gonzalez (“Gonzalez”)

at an HEB store in Harlingen, Texas. Cantu and Saldivar met

outside the HEB store on May 29, 1999, where they discussed

1 Garcia worked with a DEA agent, Scott Nagle (“Nagle”), in California, and a Texas Department of Public Safety agent, Frank Saldivar (“Saldivar”). Neither agent knew of the other’s investigation of Cantu.

2 Saldivar’s purchase of fifteen pounds of methamphetamine, which

Gonzalez would supply. Cantu asked Saldivar if he were interested

in purchasing some heroin, made statements regarding the details of

the heroin business and placed phone calls regarding heroin. Cantu

and Saldivar then entered the HEB store, where Cantu introduced

Saldivar to Gonzalez and they discussed the methamphetamine deal.

Cantu assured Saldivar that he was doing business with a good

organization.

In June 1999, Gonzalez traveled to Dallas through Waco to

complete the methamphetamine deal and introduce Saldivar to several

other members of the organization. During that trip to Dallas,

Gonzalez was arrested. Other members of the organization were

arrested after completing a methamphetamine transaction in San

Antonio, Texas in August 1999.2

A jury convicted Cantu of conspiracy to possess with the

intent to distribute more than fifty grams of methamphetamine in

violation of 21 U.S.C. §§ 841 and 846 and possession with intent to

distribute more than fifty grams of methamphetamine in violation of

21 U.S.C. § 841 and 18 U.S.C. § 2. He was sentenced to concurrent

terms of 188 months imprisonment and five years supervised release.

He appeals his conviction and the enhancement of his sentence.

II

Cantu argues that the district court erred in not instructing

2 The organization transported drugs through and completed drug transactions in San Antonio, Waco and Austin.

3 the jury on venue. He further argues that the evidence is not

sufficient to establish venue. Cantu concedes that he did not

raise the issue of venue at trial. Under this court’s precedent he

has waived his challenges to venue.

Generally, failure to raise the issue of venue before trial or

before jury verdict in the district court, constitutes waiver of

the issue of venue. United States v. Carbajal, 290 F.3d 277, 289

(5th Cir. 2002); United States v. Carreon-Palacio, 267 F.3d 381,

391-93 (5th Cir. 2001). Cantu argues that his general Rule 29

motion was sufficient to preserve the issue of venue for appeal.

This court has expressly rejected that argument. Carbajal, 290 F.3d

at 289 n. 19 (“Carbajal failed to preserve this issue for appeal by

specifically raising the issue in his motion for acquittal or by

requesting a jury instruction on venue”). See also United States

v. Bala, 236 F.3d 87, 95-96 (2nd Cir. 2000). Cantu’s argument that

he is entitled to plain error/manifest injustice review of his

venue challenges is similarly foreclosed. Carbajal, 290 F.3d at

289.

In spite of a failure to make a formal objection before trial,

“failure to instruct on venue is reversible error when trial

testimony puts venue in issue and the defendant requests the

instruction.” Carreon-Palacio, 267 F.3d at 392 (citing United

States v. Winship, 724 F.2d 1116, 1124-25 (5th Cir. 1984)). Cantu

concedes that he did not request an instruction on venue and does

not argue that the trial testimony put venue in issue. The

4 district court therefore did not err by not giving, sua sponte, a

venue instruction to the jury.

III

Cantu argues that his trial counsel’s failure to raise the

issue of venue in the district court amounts to ineffective

assistance. This court does not review claims of ineffective

assistance of counsel on direct appeal unless the issue was

presented to the district court. United States v. Lampazianie, 251

F.3d 519, 527 (5th Cir. 2001); United States v. Rinard, 956 F.2d 85,

87 (5th Cir. 1992). However, this court will resolve ineffective

assistance claims in “rare cases where the record allows [this

court] to evaluate fairly the merits of the claim.” United States

v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987). This is not one of

those rare cases. Cantu did not raise this claim in the district

court. There is nothing in the record regarding the merits of the

claim including counsel’s awareness of problems with venue or his

reasons for not raising objections to venue. Because there is

nothing in the record that would allow us fairly to evaluate the

merits, we do not address Cantu’s ineffective assistance claim.

IV

On cross-examination, Cantu’s counsel asked Garcia how much

income he earned as an informant in 1999. Counsel for the

government objected based on relevancy and the district court

sustained the objection. Cantu argues that the district court

erred in sustaining the objection and that this error violated his

5 Sixth Amendment right to confront the witnesses against him.

We turn first to Cantu’s Sixth Amendment claim. The Sixth

Amendment guarantees the right of an accused “to be confronted with

the witnesses against him” and the opportunity for an effective

cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 678

(1986). A defendant’s Sixth Amendment rights are violated when he

is prohibited from proper cross-examination designed to show “facts

from which jurors could appropriately draw inferences relating to

the reliability of the witness.” Id. On the other hand, the Sixth

Amendment is not violated by limitations on cross-examination if

the jury is presented with sufficient information to “appropriately

draw inferences relating to the reliability of the witness.” Id.

The record is clear that Cantu was able to elicit sufficient

information from Garcia on cross-examination to inform the jury on

issues of credibility. Garcia testified that he was a professional

informant and had been since 1979. He testified that he worked for

federal and state authorities in California and Texas, and that he

was paid for providing information to these authorities. He

testified further that he was paid by the case, that he was paid

$7,200 for his work on the case against Cantu, and that he was paid

after Cantu was apprehended. From this testimony, the jury was

exposed to facts sufficient to show that Garcia might have a reason

to lie. The district court’s ruling on the government’s objection

relating to Garcia’s income for 1999 did not violate Cantu’s Sixth

Amendment rights.

6 Once the Sixth Amendment has been satisfied, this court

reviews the district court’s restrictions on cross examination for

abuse of discretion. United States v. Maloof, 205 F.3d 819, 829

(5th Cir. 2000); United States v. Perez, 217 F.3d 323, 331 (5th Cir.

2000). Cantu argues that the amount Garcia earned in 1999 is

relevant to the strength of Garcia’s potential motive to entrap

Cantu because if Garcia had not earned a lot that year, he would be

more likely to lie in Cantu’s case. The government counters that

Garcia’s income in 1999 is irrelevant because Garcia’s income in

the last six months of 1999 (after Cantu’s arrest) was not yet

earned when Garcia was associating with Cantu. We think that the

relevancy of this information is doubtful and cannot say that the

district court abused its discretion in determining that the

information was irrelevant.

V

Finally, Cantu argues that the district court erred in

enhancing his offense level by two levels for obstruction of

justice and perjury under U.S.S.G. § 3C1.1. This court reviews

factual findings made by a district court for sentencing purposes

under the clearly erroneous standard, and reviews the district

court's legal application of the Guidelines de novo. United States

v. Asibor, 109 F.3d 1023, 1040 (5th Cir. 1997).

Section 3C1.1 provides a two level enhancement of offense

level “[i]f the defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice

7 during the investigation, prosecution, or sentencing of the instant

offense.” U.S.S.G. § 3C1.1. The comments to § 3C1.1 specifically

include “committing, suborning, or attempting to suborn perjury” as

conduct warranting an enhancement for obstruction. To support an

enhancement based on perjury, the district court must make an

independent finding that the defendant gave “false testimony

concerning a material matter with the willful intent to provide

false testimony, rather than as a result of confusion, mistake or

faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993);

United States v. Wild, 92 F.3d 304, 308 (5th Cir. 1996).

At the close of trial, the district court doubled the bond in

the case “based on obstruction of justice and perjury that I’ve

heard this afternoon.” The presentence report included findings

that Cantu “wilfully obstructed the administration of justice,”

specifically citing Cantu’s testimony denying his involvement in

the conspiracy, denying his prior dealings with and connection to

people in the drug trade, and claiming that he was entrapped and

forced to deal drugs. An addendum to the presentence report

concluded that Cantu’s untruthful testimony was given with willful

intent rather than as a result of confusion. At the sentencing

hearing, the district court adopted the presentence report in full

and made the following findings:

[T]he defendant took an oath to tell the truth. This defendant committed perjury and obstructed justice. During the trial proceedings, the defendant made numerous false statements knowing those statements were false. The statements that were given under oath were material

8 and... the defendant gave false testimony as to the element of entrapment by denying prior heroin dealings.

Cantu argues that the court’s findings are clearly erroneous

because the court did not identify particular false testimony. The

district court is not required to identify specific perjurious

statements in order to apply § 3C1.1. United States v. Gonzalez,

163 F.3d 255, 263 (5th Cir. 1998). The district court, by adopting

the presentence report, made an independent finding that Cantu’s

testimony regarding his involvement in the conspiracy, his prior

dealings in the drug trade, his connection to those involved in the

drug trade, and his claim of entrapment was inconsistent with all

of the other testimony and evidence on these points in a way that

is attributable to perjury rather than confusion. This

identification of instances of perjury satisfies the requirements

of § 3C1.1. Cantu also argues that his testimony that he had not

engaged in heroin dealing did not conflict with any evidence in the

record. While there was no direct testimony as to specific prior

heroin deals, there was testimony indicating that Cantu approached

Saldivar about selling them heroin; that Cantu had knowledge of the

heroin business; and that Cantu had established heroin dealing

contacts. Cantu’s testimony that he did not deal in heroin prior

to his contact with Garcia conflicts with this testimony. The

finding that these conflicts in testimony are attributable to

perjury by Cantu is not clearly erroneous.

Cantu argues that under Apprendi v. New Jersey, 530 U.S. 466

9 (2000) and Ring v. Arizona, 122 S.Ct. 2428 (2002), the sentence

enhancement violates his Sixth Amendment right to a jury

determination of the facts essential to punishment. In Apprendi,

the Supreme Court held that “[o]ther than the fact of prior

conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. The

Supreme Court applied Apprendi in Ring, holding that capital

defendants are entitled to a jury determination of factors

increasing their maximum punishment from life to death. Ring, 122

S.Ct. at 2432. We have consistently held that Apprendi is limited

to facts which increase the penalty beyond the statutory maximum

and is not applicable to the district court’s factual findings for

the purposes of determining sentences under the Sentencing

Guidelines within the applicable statutory range. United States v.

Doggett, 230 F.3d 160, 165 (5th Cir. 2000). Ring does not change

that analysis. Cantu’s sentence in this case, 188 months in prison

and five years of supervised release, is well within the statutory

maximum of life in prison; therefore, Apprendi does not apply.

For the foregoing reasons, the judgment of the district court

is AFFIRMED.